The New Hampshire House of Representatives (all 400 of them!) will debate a resolution tomorrow to exercise NH’s power to call on Congress to convene an Article V convention. This is an important decision for New Hampshire. I just hope the confused rhetoric of the John Birch Society doesn’t confuse the issue. 

Article V of our Constitution governs the procedures for amending the constitution. The original draft of that provision gave Congress the exclusive role in proposing amendments. On September 15, 1787, George Mason raised an obvious objection: What if Congress itself is the problem? That led the framers to add a second path in the amendment process: State legislatures can demand (if 2/3ds so vote) that Congress “call a Convention for proposing Amendments.” Those proposals are only valid if 3/4ths of the states (38) ratify them.

The John Birch Society has long opposed this bit of the framers’ design. Their fear is that a “constitutional convention” could “run away” (which is code for the idea that it could change the constitution). That was the view expressed by one NH representative to a constituent in an email that I saw. As that representative wrote:

"If a constitutional convention is begun, the entire constitution is open for adding, removing, or changing amendments. Are you willing to risk the loss of some of your constitutional rights" 

But this is just a confusion. Yes, of course, according to our tradition, a “constitutional convention” has the power to “alter or abolish” a Constitution. That was the premise of the Declaration of Independence. And that’s a good reason to fear such a beast.

But Article V has nothing to do with a “constitutional convention.” Its focus is a “Convention for proposing Amendments.” And if the English language has any meaning, a “Convention for proposing Amendments” is not a “convention with the power to adopt amendments” (i.e., a “constitutional convention”). It is instead a convention with a precisely limited scope: the power to “propose amendments.” 

"But," I’ve been asked, "what if the convention proposed some crazy amendment?"

Fair question. Let’s do the math: 

It takes 38 states to ratify an amendment to the Constitution. That means the vote of one chamber in 13 states could block any amendment to the Constitution. 

According to Wikipedia, there are 27 double Red states in America  — meaning states whose legislature is controlled by Republicans — and 18 double Blue states in America — meaning states whose legislature is controlled by Democrats.

To fear some “crazy amendment” from the Right, you’d have to believe that we couldn’t find 13 chambers among the 18 double Blue states to vote against it. Or to fear some “crazy amendment” from the Left, you’d have to believe that they couldn’t find 13 chambers among the 27 double Red states to vote against it. 

Those are possibilities, of course. But in my view, they less likely than world peace and an end to unemployment happening next Wednesday. Maybe, but it seems INCREDIBLY remote. 

On the other hand, what isn’t incredibly remote is the possibility that our government will fail if we don’t find a way to address the system of corruption that now infects it. That, in my view, isn’t a hypothetical. That is a certainty. 

The call for an Article V convention is supported by sane souls on the Right (see Convention of the States). It is supported by sane souls on the Left (see Wolf-PAC). (Not that either side of that divide would necessarily agree with my characterization of the other, but that’s my view).

It’s my hope that New Hampshire will join this mix.

After all, the New Hampshire Constitution expressly protects the right to revolution. The power to propose amendments, by contrast, is pretty tame standing next to that express guarantee. If any state should understand the difference, New Hampshire certainly should. 

  1. gnosister reblogged this from lessig
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  3. schedulor reblogged this from azspot
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  5. thisthingisbroken reblogged this from lessig and added:
    This is the thing that could fix American Politics.
  6. robewaschuk reblogged this from lessig
  7. punktoad said: Are there enough undistracted sane people left?
  8. bripodus reblogged this from lessig and added:
    And the House votes 225 to 104 to repeal the death penalty. Good day for NH.
  9. tekym reblogged this from lessig
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  11. michaellangford said: I would love to know Lessig’s views on the 12th Amendment, and what the original constitutional intent for presidential elections might have produced over time.
  12. michaellangford reblogged this from lessig
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  16. shanefarthing reblogged this from lessig and added:
    Pretty sure I’m with NH on giving this a shot. Hope @dc_vote has a proposed amendment & campaign ready.
  17. oldparasitesingle reblogged this from lessig
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  19. theworldisconfused said: As a thought experiment, could you have an Article V amendment along the lines of “All articles and amendments to this Constitution adopted prior to the date hereof are hereby abolished and replaced with the text in Exhibit A attached hereto”? :P
  20. michaelk42 reblogged this from lessig

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